Undoubtedly the most common building defect issue that is found within Owners Corporations is water leaks. Problems often arise because water penetrates through either common property or private property causing damage to other Lots.
Defective building works may be located on common property and/or within individual Lot boundaries. However, since the case of Owners Corporation PS508732B v Fisher [2014] VCAT 1358 it has been confirmed that on plans where the boundary definition is interior face or median (as is almost always the case), the tiles and membrane are private property. Accordingly, if there is a defect with the waterproof membrane, it is the Lot owner’s responsibility to rectify the defect and the Lot owner will be liable for any damage caused by the leak (most likely to the Lot below).
Section 129 of the Owners Corporations Act 2006 (“Act”) requires a Lot owner to properly maintain in a state of good and serviceable repair any part of the Lot that affects the outward appearance of the Lot or the use or enjoyment of other Lots or the Common Property.
Notwithstanding that the defect is a private property matter, the Owners Corporation is empowered by the Act to get involved. Where, for example, a flow of water emanates from private property, section 48(1) of the Act enables the Owners Corporation to serve a notice stating that the Lot is not properly maintained and requiring that the Lot owner carry out the necessary repairs, maintenance or other works. This notice will require the Lot owner to carry out the works within 28 days, failing which the Owners Corporation may carry out the necessary repairs, maintenance or other works to the Lot and recover as a debt from the Lot owner the costs of the repairs, maintenance or other works.
Further, from a legal liability perspective, it is critically important that Lot owners with leaks emanating from their property act quickly to address the issue. Section 16(1) of the Water Act 1989 provides that:
“(1) If-
(a) there is a flow of water from the land of a person onto any other
land; and
(b) that flow is not reasonable; and
(c) the water causes-
(i) injury to any other person; or
(ii) damage to the property (whether real or personal) of any other person; or (iii) any other person to suffer economic loss- the person who caused the
flow is liable to pay damages to that other person in respect of that
injury, damage or loss…”
This section means that if water flowing from a Lot causes damage to a Lot below, the owner of the Lot from which the water emanates is largely strictly liable for the damage caused to the Lot below.
Having regard to the water damage being caused by the leaks and the legal exposure of the Lot owner from whose Lot the leak is emanating, it is in everyone’s interests for all leaks to be addressed and rectified as soon as possible. To that end, it is encouraged that all parties work together to address the issue. Your Owners Corporation Manager is a great resource and can provide assistance in navigating the intricacies of the building defects process.
Indeed, if the building is less than 10 years old, the waterproofing defect should be covered by the implied warranties contained in the Domestic Building Contracts Act 1995. This means that the Lot owner can pursue the Builder to rectify the defects and pay for any consequential damage.
Should you be involved in a water leak matter and wish to explore your legal options, please contact Mark Lipshutz at CLP Lawyers Pty Ltd on 9042 2070 or at mark@clplawyers.com.au.
The information contained in this article is for general guidance and reference purposes only and is not a substitute for legal advice. Please consult CLP Lawyers to obtain legal advice relevant to your personal circumstances before making any decision or taking any action. CLP Lawyers will not be liable for any loss resulting from any Action taken or reliance made by you on any information contained in this article.© 2023 CLP Lawyers Pty Ltd
Mark LipshutzCLP Lawyers
